in so far as its effect is to extinguish the easement, but what of the other portion of the covenant which, by force of that same construction, imposes upon the dominant owner the obligation to pay $10 for each and every day the greenhouses remain there? That question did not arise in the case, but the decision opens it up, and equity does not favor a forfeiture.

E. M. L.

CONSTITUTIONAL LAW-SPECIAL LEGISLATION-COMPETITIVE BIDDING AND THE PUBLICATION OF STATE STATUTES INJUNCTION. -In the case of Callaghan and Company v. Smith et al. 304 Ill. 532, 136 N. E. 748, the Supreme Court reversed a decree of the Superior Court of Cook County, Illinois, which sustained a demurrer to and dismissed for want of equity a bill in chancery in which the appellant Callaghan and Company prayed that the appellee Burdette J. Smith, a rival publisher, might be "enjoined from printing, publishing or distributing a compilation of the statutes of Illinois, or from submitting such compilation to the Attorney General or giving bond to the Secretary of State pursuant to the provisions of the act of the General Assembly in question (Laws 1921 p. 843), and that the Attorney General might be perpetually enjoined from approving any such compilation of the laws of the State of Illinois so published."

The case is of more than usual interest. It not only appears to announce a sound public policy, but to be in conformity with established principles. It announces the doctrine that the compilation and publication of the statutes of the State of Illinois is a lawful business in which every individual has the right to engage and with which neither the courts nor the legislature can interfere, "except in the exercise of the police power." It means, we suppose, by the exception and by the term "police power," except for the purpose of preventing fraud and of securing the accuracy which is essential to the promulgation of every law and every compilation of laws and upon which the welfare of the public and the safety of litigants so largely depends.

In conformity, we believe, with sound, equitable principles, it holds that a private publisher who has already invested large sums of money in the preparation and publication of another edition has a property right which a court of equity should and will protect against the unfair competition of such a state endorsed edition. It therefore holds unconstitutional, as conferring a special privilege, the act of the legislature which seeks to confer upon the appellee Smith, and the appellee Smith alone, the right to submit his edition. of the statutes to the Attorney General of the state for his approval, and which of course incidentally gives to the said Smith the sole right to advertise and claim that his edition, and his edition alone, is entitled to and has received the governmental sanction and approval, and is alone entitled to the preferences conferred by Section 10 of Chapter 51 of the Revised Statutes of Illinois, which provides that "The printed statute books of the United States, and of this

state, and of the several states, of the territories and late territories of the United States, purporting to be printed under the authority of said United States, any state or territory, shall be evidence in all courts and places in this state, of the acts therein contained."

The Attorney General is made a party to the bill and his approval can, under the opinion, be enjoined. That approval, however, has been given, and in order that the complainant may be protected something more is necessary, and that is an injunction against the rival publisher himself, and this the court holds can be issued.

To this extent the case is somewhat novel and there are few if any authorities on the direct question. None are cited in the opinion or in the briefs of counsel, and the question is dismissed with the suggestion, "If the officers charged with the enforcement of the law may be restrained from enforcing an unconstitutional statute which the courts regard as no law, the same principle will justify an injunction against the exercise of a special privilege purporting to be granted by an unconstitutional law where its exercise will cause special injury to the appellant for which there is no adequate remedy."

The opinion does not go so far as to hold (and a discussion of the question was, as far as the case at bar was concerned, unnecessary) that in certain instances the state itself could not publish its own statutes and place upon its own edition the seal of its approval. This was done in 1874 in an act which provided that H. B. Hurd, the Acting Commissioner of the Revision, should compile and edit the volume and superintend its publication at a specified compensation, and which also provided for an edition of 15,500 copies, to be distributed and sold according to the provisions of the statute, and again, in 1917, by an act which provided for the publication, distribution and selling of a complete edition of the session laws. In the case at bar, indeed, the court was dealing with a private and not with a public monopoly, and it seems to be quite clear that no state can or should create a private monopoly in the publication and compilation of the rules by which, as a self-governing community, it has chosen to be regulated and controlled.

It is sufficient to say, and this furnishes one of the principal grounds for the decision, that, even if the appellee Smith were to be considered as an agent of the state, and the publication a state publication, or even if the state might be considered, in return for the copies to be furnished gratis to its officers, to have sold the right to issue and to publish, the act would still be in violation of Section 25 of Article 4 of the constitution, which provides that: "The General Assembly shall provide by law that the fuel, stationery and printing paper furnished for the use of the state, the copying, printing, binding, and distributing the laws and journals and all other printing ordered by the General Assembly, shall be let by contract to the lowest responsible bidder."

There can indeed be but little doubt of the unconstitutionality of the statute in question, nor, in these later days, should there be any

doubt of the right of a private person or corporation whose property rights are seriously affected by the exercise by a competitor of a privilege conferred by an unconstitutional act to deny that right and to enjoin its exercise. The constitutional provision which prohibits the granting of special privileges except in certain instances was the result of the protest of the individual and of the individualism which is at the foundation of our whole social structure. Its purpose was to protect private and not public rights.

It would also be idle to argue that the defendant Smith has already issued his edition and that the matter is now moot. Even if it were moot, where, as in the case at bar, matters of public policy are concerned the American courts have quite uniformly adopted the practice of announcing that policy so as to guard against similar controversies in the future. But it is not moot. For as long as a number of copies bearing the approval of the state are in circulation, can be sold at second hand and can be produced in court as alone worthy of full credence, the sale of any other edition must certainly be interfered with. Future editions of the same compilation may also well be issued.

A. A. B.

WHEN IS A FREEHOLD INVOLVED WITHIN THE MEANING OF THE ILLINOIS PRACTICE ACT.—Lennartz v. Boddie 304 Ill. 484, 136 N. E. 718, is opportune in connection with Robnett v. Miller 303 Ill. 515, commented upon in the November number of the REVIEW (XVII 235). In that case a bill was brought to redeem from a master's sale on foreclosure, after the master's deed had issued, and there was thus involved the setting aside of the master's deed. Following the trend of the authorities, the court points out that even if the right to redeem were allowed, the title would not necessarily be changed; that is, whether the holder of the master's deed were divested or not would depend upon the other party's actually availing himself of the right to redeem. (I. L. R. XIV 223, with particular reference to Diggins v. Axtell 266 Ill. 556; Becker v. Fink 273 Ill. 184.)

E. M. L.

MINERAL RIGHTS-Nature of Right-AdvERSE POSSESSION.In Kinder v. La Salle County Coal Co. 301 Ill. 362, 133 N. E. 772, the court reaffirms the rule as recently heretofore laid down by it that mineral rights are a species of real property of a corporeal nature and that title thereto may be acquired by adverse possession, in the same way as title to the surface of the land. (Calame v. Paisley 296 Ill. 623; Renfro v. Hanan 297 Ill. 355, 356.) But the court reiterates (Renfro v. Hanan 297 Ill. 355, 356) that occupancy of the surface does not constitute occupancy of the mineral estate and indicates, it would seem, that the occupancy or possession necessary to lay the foundation for adverse possession thereof must be such occupancy or possession as must be taken in order to enjoy the particular right, e. g., actually mining the mineral.

The case, however, does not positively define the nature of the occupancy or possession necessary as one of the elements of such adverse possession, the question being raised only by demurrer to the bill of complaint, which contained the allegation that appellants and their predecessors in title had been in the actual, visible, open, adverse and exclusive possession, as owners in fee simple, of said land from 1866 down to and including the present time that during all the time since 1869 they and their predecessors in title have been in the actual, visible, hostile, exclusive and continuous and open possession, under claim of ownership of, and under color of title to, all clay, sand, etc. This allegation the court held to be a sufficient statement of ultimate fact (conclusion of fact) to be admitted by the demurrer.

E. M. L.

PARENT AND CHILD CUSTODY-REMOVAL OF CHILD FROM JURISDICTION.-In the great mass of cases with which our Supreme Court is constantly overwhelmed, one should not pick out and limelight only those few opinions which appear to exhibit aberrations from rules announced in former opinions, but should be as ready, at least, to advertise the numerous other opinions in which the court is unquestionably right. And, it would seem, one ought to go further and utter expressions of commendation when out of that grist of numerous matters an especially brilliant opinion appears. Such a one, it is submitted, is the opinion in the case of Stafford v. Stafford 299 Ill. 438, 132 N. E. 452.

The case is one where the wife obtained a divorce and the custody of the child in an ex parte proceeding. Within the term, the husband, who had been away, moved to open the decree, and the motion was regularly entered. Before it could be heard, the wife died, and, on motion of the wife's sister, again an ex parte hearing, for the husband was away again, the custody of the child was awarded to the wife's sister. A motion to open up this last order was likewise made, and in time.

Two considerations appear to have addressed themselves to the court below: (1) The right of the natural parent, the father, as against all others, to the custody of the child; (2) the right of the natural parent, conceding his right to custody, to remove the child out of the jurisdiction.

On the first point various factors were involved. Among those there were: (a) the question of what degree of improbity the parent might indulge in without forfeiting his right; (b) the wish of the child; and (c) the effect of a will by the parent in whom custody of the child was upon the right of the other parent.

(a) The Supreme Court recognizes the father's right where he is fit, and thereby states the well known rule, but the court supplies what most decisions have slurred, and that is a definition of fitness. The definition, the court points out, must be a common sense one and not any ideal, ethical notion of fitness, such as might be entertained by those whose familiarity with the subject begins

and ends with philosophy and abhors the experience that can come only from the very relationship of parent and child itself. Thus the court says:

"It may be admitted that the occasional taking of a drink of liquor or the smoking or chewing of tobacco is not a special aid to a man or a recommendation, but we apprehend that no man would undertake to hold as a matter of law, that either or both would absolutely disqualify a man from having the custody of his child or be considered sufficient ground for giving the custody of his child to another who has no such habit or any other bad habit."

And again:

"As against him [the father] the plaintiff in error [the mother's sister] has no right whatever under the law to the custody of the child, no more than an absolute stranger, unless it, can be shown that he has in some way forfeited his right."

The doctrine, as thus expounded, would seem borne out by the following cases in addition to those cited in the opinion: Lindsay v. Lindsay 257 Ill. 334; People ex rel. v. Bryson 198 Ill. App. 171; People ex rel. Schwartz 38 Chi. Leg. News 166.

(b) Following the line of argument, the court reaches this conclusion relative to the other factor:

"In a very doubtful case the wish of the child is to be considered and given weight, but we do not think that the wish of the child in this case should have any great weight in determining the question of custody."

(c) But the most interesting development is that appertaining to the third factor, upon the question of the effect of a testamentary disposition relative to the child. In meeting this point, the court was confronted with two cases in Illinois: People v. Small 237 Ill. 169; Wilkinson v. Deming 80 Ill. 342. In both cases a divorce decree gave the custody of the child to the mother. Both cases sustain the right of the mother to appoint by will a guardian of the child, even as against the father, upon the theory, as the court in the latter case says, that "by the divorce decree the infant is no longer the child of the divorced father, but is entirely under the control of the mother. The same case seems to suggest that the father had that power before divorce.

In the principal case, however, the testamentary provision appointed a guardian of the estate of the ward only, and did not appoint a guardian of the person, and, as the court says, it was competent for the court to appoint the testamentary guardian, guardian of the estate, and the father guardian of the person of the ward. But another feature of distinction is present. The Circuit Court held that the father was not an unfit person to have custody of the child, and in that set aside the order giving the mother absolute custody of the child, so that the element of the court depriving the father of custody of the child, present in the earlier cases, was absent here.